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Probate- Who Can Object to a Will? Part 2

Surrogate’s Court Procedure Act (“SCPA”) section 1410 states that “[a]ny person whose interest in property or in the estate of the testator would be adversely affected by the admission of the will to probate may file objections to the probate of the will or of any portion thereof ….” [emphasis added]. The question then becomes — what kind of interest must the person objecting have? Answer: to be an “interested” person who can contest a will, there must be a pecuniary loss.

EXAMPLE:Stacy of Smithtown, NY died on July 27, 2015, at the age of 89, survived by her daughter, Susan, and two grandchildren, Carol and Kenneth (issue of a predeceased son). Stacy’s last will dated June 9, 2013 offered for probate in the Suffolk County Surrogate’s Court made gifts to 22 individuals and charities including property valued at $750,000 to Susan; $10,000 each to Carol, Kenneth, and Carol’s husband; and a trust of $200,000 for the income benefit of Carol and Kenneth measured by the life of their mother, Jane. Stacy left her residuary estate outright to her daughter Susan.

A prior will of Stacy, dated April 2, 2011, left only 45% of the residuary estate to Susan, with 30% left in trust for the benefit of Carol and Kenneth during the lifetime of Jane (who was included with her children as a potential beneficiary of the trust in the sole discretion of the trustee) and 25% left to charity.

Jane objected to the probate of Stacy’s last will dated June 9, 2013. Does she have standing to object? Or, more specifically, is there a pecuniary loss making her an interest person?

Answer: Yes; standing to object to probate does not require an interest that is “absolute”; a contingent interest is enough. The uncertainty of an interest should not preclude its holder from seeking to protect it, i.e., she should have standing to object to a propounded instrument that makes the possibility of benefit even more remote or eliminates such possibility entirely. i

To be continued ….
Aaron E. Futterman, CPA, Esq. is a partner in the law firm of Futterman & Lanza, LLP with offices in Smithtown, NY and clients throughout Suffolk, Nassau, Queens, Brooklyn, Bronx, Richmond, New York, Westchester and Rockland Counties. He concentrates his practice to Elder Law, Medicaid Planning, Medicaid Applications, Estate Planning, Probate, Estate Taxes, and Estate Administration.

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